No. 611 April Term, 1979, Appeal from Final Decree of the Court of Common Pleas, Civil Division, of Allegheny County, in Equity, at No. G D 79-9663.
T. Lawrence Palmer, Pittsburgh, for appellant.
George E. McGrann, Pittsburgh, for appellee.
Cavanaugh, Hoffman and Van der Voort, JJ.
[ 289 Pa. Super. Page 212]
During the winter of 1974 the appellee, Christina L. Haines, who at that time was unmarried, visited a development of townhouses known as Sewickley Heights Manor, which were then being constructed by the appellant, Minnock Construction Company. At that time the first buildings in the development were going up. Appellee, whose name then was Christina L. Karol, again visited the site in the fall of 1974. She was very favorably impressed with the wooded area surrounding the townhouse that she contemplated purchasing. She talked to the appellant's project manager, Pat Deigan and to another of appellant's employees, Mary Jane Call, during the several visits that she made to Sewickley Heights Manor. Appellee was particularly interested in a quiet and private area in which to purchase a townhouse. She was an airline flight attendant and since she worked at unusual hours, and therefore slept at hours other than the usual times for sleeping, she did not want to be disturbed by the comings and goings of workers keeping more conventional hours. She was shown the site where building 8 was being constructed which ultimately contained the townhouse that she purchased and she was struck by the beauty of the heavy woods located in back of the building. The building contained six townhouses and the area behind it contained tall cherry trees, many birds and animals such as raccoons and an occasional deer. Appellant was also given pamphlets by Mary Jane Call which described the development. The residential area guide stated "Sewickley Heights Manor quietly sits on one hundred fifteen acres of heavily wooded, rolling Pennsylvania hills. Our land planners sensitively designed the entire area to enhance its natural and rustic beauty. And due to the wooded character of the land, each condominium grouping sets back, privately shaded from its neighbor . . . Even the single access road is purposely designed to maintain privacy, eliminate traffic congestion and add to the forest atmosphere." Another of the brochures given to appellant described the area as follows:
[ 289 Pa. Super. Page 213]
This is a fresh and special place where coming home is a whole new way of living. Your townhouse sets back, nestled in the beauty of its own tree shaded private land. All the areas [sic] natural charm has been preserved. We left untouched the generous and quiet forest.
Apparently the brochures given to the appellee did not exaggerate in their description of the natural beauty of the place.
Appellee was given a "residential area guide" by one of appellant's agents and the guide stated directly behind building 8, the building containing appellant's townhouse which was numbered as 803, the words "open space". Appellee inquired whether this would remain open space and was assured by the project manager that it would so remain. Relying on the appellant's promise that the area behind building 8 would remain as open space appellee purchased her townhouse, unit 803, and made settlement on July 30, 1975.
Appellee's townhouse was part of what was known as Addition II and eventually Addition III and subsequent additions were constructed. By the time of the hearing in this case in the court below some ten additions had been completed.
Addition III was submitted for approval to the commissioners of Aleppo Township on June 10, 1975 and plans for it were recorded in the office of the Recorder of Deeds on September 8, 1975. Addition III provided for construction of buildings 17 and 18 which have since been constructed and to which appellee has no objection. The three separate buildings 8, 17 and 18 each contain townhouses and the three buildings form a "U" with building 8 constituting the right side of the "U", building 18 the bottom, and building 17 the left side. The open space that appellee is desirous of maintaining is in the middle of the "U". The papers filed in connection with Addition III also show the offending building No. 20 which it is contemplated will contain townhouses and which appears in the middle of the "U".
[ 289 Pa. Super. Page 214]
From the time appellee took possession of her townhouse on July, 1975, until about January, 1979, the open space behind the townhouse remained in its natural state. In January, 1979, rumors started in Sewickley Heights Manor that another townhouse would be built in the open space by the appellant. The rumors proved correct and around April 1, 1979, appellant's construction crews commenced staking out the property and leveling trees in preparation for constructing building No. 20 and also a commercial building. It became clear to the appellee that the sylvan setting that she and her husband (appellee having married after purchasing the townhouse) had enjoyed would soon be destroyed or at least substantially diminished. Appellee commenced an action in equity seeking an injunction. On May 9, 1979, a preliminary injunction was entered restraining appellant (defendant in the court below) from construction of dwelling units or commercial buildings on Sewickley Heights Drive behind the plaintiff's dwelling and located within the "U". After an extended hearing before McKenna, J., a final decree was entered which permanently enjoined the appellant from clearing the area behind the appellee's townhouse or further constructing or otherwise interfering with the area designated on the "residential area guide" as open space. The decree further directed that appellant convey to the Sewickley Heights Manor Homes Association the land situated in the open space as designated on the "Residential Area Guide". The decree also sets forth the legal description of the land involved. From this final decree the appellant has appealed to this court.
Appellant contends that the promise to leave the land behind the appellee's townhouse as open space is barred by the Statute of Frauds. The Act of March 21, ...